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SCOTUS Takes Tribal Sovereignty To Heart

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By Melissa Stanzione

Dec. 7 — The U.S.
Supreme Court justices served up several hypotheticals today,
ranging from New York Yankees fans in a Massachusetts state court
to non-Indians gambling, as they heard arguments in a case with
facts “in the heartland of the tribal jurisdiction that this Court
has recognized for decades”.

“I think it's a little odd to say this is in the
heartland of Indian jurisdiction” Chief Justice John G. Roberts Jr.
said in response to Neal Kumar Katyal's description of the case in
his opening sentence.

Katyal, of Hogan Lovells US LLP, Washington,
represented the respondents in this case, the Mississippi Band of
Choctaw Indians, their tribal court, and a minor and his
parents.

The case involves the alleged sexual abuse of an
American Indian boy by a non-tribal member, Dale Townsend, who
operated a Dollar General store on tribal land and who supervised
the boy for an internship at the store (82 U.S.L.W. 577,
10/22/13).

The boy sued Dollar General, Dolgencorp and Townsend
in tribal court. After an unsuccessful interlocutory appeal in the
Choctaw Supreme Court, Dolgencorp and Townsend filed an action in
federal district court, attempting to enjoin the boy's suit from
proceeding in tribal court. They argued that the tribal court
lacked jurisdiction over them.

The U.S. Court of Appeals for the Fifth Circuit
found for the tribe.

Dictum Is Dictum

The Chief Justice demanded to know of a case “where
a nonmember has been held liable in tort in an Indian court.”

Katyal referred to the high court's language that
“tribal authority of the activities of non-Indians on reservation
lands is an important part of tribal authority” in Strate v. A-1 Contractors, 520 U.S. 438 (U.S.
1997).

“I don't know what authority Congress has to subject
citizens of the United States to that nonconstitutional forum,”
Justice Anthony M. Kennedy said.

“Yes, these are constitutional concerns,” Katyal
said, but when someone has consented, “then that takes it out of
that circumstance.”

Alito's Hypothetical

“I'm trying to understand the limits of your
argument,” Justice Samuel A. Alito Jr. said to Katyal. What if
someone went to an Indian casino, lost a lot of money, then posted
online that they were cheated and the game was rigged.

“Could the tribe sue that person for defamation in
tribal court?” he asked.

Katyal didn't think so as “it's got to be something
that's reasonably anticipated.”

Due Process Violation?

“Does it violate due process for a non-member to be
subjected to a jury trial with the jury composed solely of members
of the tribe?” Roberts asked Katyal.

“It arguably could violate the due process clauses
incorporated” into the Indian Civil Rights Act, Katyal
responded.

Congress “could ban those juries. They have plenary
jurisdiction in this area. That's why the ball is in Congress's
court, Congress's shoes. It's not in this court's,” Katyal
said.

Yankees Fan

Justice Stephen G. Breyer followed up with another
hypothetical.

“Is that right?” he asked. What if there's $50,000
at stake in a case and a New Yorker wants to sue a Massachusetts
citizen?” Breyer asked.

The New Yorker has to go before a jury to obtain the
$50,000 in a Massachusetts court. “And suppose the plaintiff is a
Yankee fan?” He asked to laughter.

Breyer was presumably referring to the rivalry
between the states' baseball teams and the bias a New Yorker might
encounter in such a situation.

‘Bottom Line.'

“Mr. Katyal, so why would these plaintiffs want to
bring the case in tribal court where they can get, in your
argument, they can get Dollar General but they can't get Townsend?
If they sued in state court, they could sue both defendants,”
Justice Ruth Bader Ginsburg asked.

The “bottom line” is what this court said in
Williams v. Lee, about the right of the
people to govern themselves. Constitutional concerns apply to “some
wandering entity” but not to someone who consents, Katyal
said.

Black Letter Law

American Indian tribes have the power to regulate
conduct but don't have judicial authority over such conduct,
Goldstein argued.

“Is it black letter law given the tribes have
complete legislative authority over non-tribe members for
regulatory purposes?” asked Kennedy.

Not in a tort context, Goldstein replied.

“If what you're arguing now is correct, Strate would have been a one-line decision: No tort
jurisdiction over a non-Indian,” Ginsburg said.

Goldstein replied that the high court granted review
“we assume,” to decide whether tribes have judicial authority where
they already have legislative jurisdiction.

What's Wrong With Tribal
Courts?

Goldstein explained that there isn't jurisdiction in
this case because of the availability—or lack of—“a neutral forum
as anticipated by the Constitution.”

“What's wrong with the tribal courts?” Breyer
asked.

It depends, Goldstein said, explaining that some
don't have “the availability of a neutral forum,” which raises due
process issues.

Here, Goldstein said, we have “a due process claim
against the punitive damage award in—that's asked for in this case,
and that would be entirely unreviewable in this case.”

It's also possible to collaterally attack the
judgment but “[t]hat is hardly treating the tribal courts as
sovereigns,” Goldstein said.

No Constitutional
Guarantees

“What civil claims can be brought against nonmembers
in tribal court?” Ginsburg asked.

Claims that are subject to the contracts that
allowed the nonmembers onto the reservation, Goldstein said.

When a tribe “in the exercise of its sovereign
authority, brings the action, so long as its consistent with
principles of due process,” he said.

“This is not a sovereign action. This is a private
suit between two individuals,” Goldstein said.

“So if the tribe brought this suit, instead of the
parents of the boy who was molested, then it would be ok?” Ginsburg
asked.

We think it's an impossibility, Goldstein said. If a
tribe tried to enforce licensing or taxation regulations in a
tribal court, “that would be a sovereign action and it would be
susceptible of the Montana
exception.”

The exception says that “a tribe may regulate,
through taxation, licensing, or other means, the activities of
nonmembers who enter consensual relationships with the tribe or its
members.” It says a tribe may also exercise civil authority over
the conduct of non-Indians on the reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.

“It's a bit of an odd argument, isn't it, Mr.
Goldstein, that there's less of a sovereign interest in protecting
your own citizens than in enforcing your licensing laws?” Justice
Elena Kagan asked.

Edwin S. Kneedler, Deputy Solicitor General of the
Department of Justice, argued as amicus curiae in support of the
respondents.

To contact the reporter on this story: Melissa
Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story:
Jessie Kokrda Kamens at jkamens@bna.com

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